The lawsuits challenging TPS cancellation

In January 2018, the Trump administration cancelled Temporary Protected Status (TPS) for almost 200,000 Salvadorans living in the US, effective September 2019. Under TPS, Salvadorans who were in the United States without documentation in February 2001, were able to remain in the country, obtain employment authorization, and live without fear of deportation.

The US government granted TPS for Salvadorans and for Haitians following devastating earthquakes in those countries in 2001 and 2010 respectively, and Hondurans after Hurricane Mitch in 1998. After each 18-month period since then during both the Bush and Obama administrations, DHS had reviewed the program, determined that the nationals could not yet return safely to their countries (due to severe safety, health, housing, and infrastructure problems, exacerbated by subsequent natural disasters), and extended the program.

With the anti-immigrant agenda of the Trump administration, however, TPS was cancelled for El Salvador, as well as Honduras, Nicaragua, Haiti and Sudan. TPS beneficiaries now have only months before their immigration status reverts to undocumented and deportable.

With changes to immigration law in the US Congress seemingly stuck in an unending partisan stalemate, advocates for TPS holders have turned to the courts to reverse these TPS cancellations.

The Lawyers’ Committee for Civil Rights and Economic Justice, in partnership with Centro Presente, filed a federal class action lawsuit in Boston against the Trump administration to save TPS for Salvadoran, Honduran and Haitian immigrants. The Amended Complaint in the case titled Centro Presente v Trump is available here. The plaintiffs argue that DHS' decision to end the program was based not on a change in conditions in El Salvador, Honduras or Haiti, but rather on invidious discrimination toward black and Latino immigrants on the basis of race, ethnicity, and/or national origin. This racial animus appeared in President Trump's public remarks disparaging Haitians and Latin American immigrants. These actions by the administration, it is claimed, violate the Equal Protection and Due Process clauses of the US Constitution.

The ACLU and other groups have also filed a lawsuit against the Trump administration's TPS cancellations for El Salvador and other countries. This lawsuit includes both TPS holders and their US citizen children. Read the complaint in the action titled Ramos v. Nielsenhere. The plaintiffs allege that the arbitrary TPS cancellation violates rights of the US citizen children to the integrity of their families as well as constitutional violations of due process and equal protection.

The federal judge in Ramos v. Nielsen has also rejected a motion by the government to dismiss the claims. A hearing on the plaintiffs' motion for a preliminary injunction is set for September 25, 2018 in San Francisco. You can follow the docket of this case here.

The federal government has been forced to turn over internal documents in discovery in the Ramos case. Those internal documents show administration officials trying to generate good facts to report about these countries in order to justify the TPS cancellations. As NPR reports:

The messages reveal that DHS asked staffers to find "positive gems" about war-torn countries to justify sending more than 300,000 people back to their homelands. The internal back-and-forths also demonstrate more subtle ways DHS sought to downplay the severity of conditions in volatile countries, like using the word "challenges," instead of "disasters" in talking points to the public.

Similar documents were revealed through an investigation by Senate Democrats and discussed by the Washington Post :

In the past six months, the Trump administration has moved to expel 300,000 Central Americans and Haitians living and working legally in the United States, disregarding senior U.S. diplomats who warned that mass deportations could destabilize the region and trigger a new surge of illegal immigration.

The warnings were transmitted to top State Department officials last year in embassy cables now at the center of an investigation by Senate Democrats, whose findings were recently referred to the Government Accountability Office. The Washington Post obtained a copy of their report.

The cables’ contents, which have not been previously disclosed, reveal career diplomats’ strong opposition to terminating the immigrants’ provisional residency, known as temporary protected status (TPS), and the possible deportation of hundreds of thousands of people to some of the poorest and most violent places in the Americas.

These disclosures in the documents should not surprise anyone. What changed between prior extensions of TPS and now was the administration in Washington, not the conditions in El Salvador and the other countries.

In a third lawsuit, TPS holders supported by the American Immigration Council and the Northwest Immigrant Rights Project sued the US government for its practice of not permitting TPS holders to apply for green cards (a process known as "adjusting status") in situations such as marriage to a US citizen spouse. Federal Courts of Appeals in the Sixth, Ninth and Eleventh Circuits have ruled that US Customs and Immigration Service must permit such applications, but the agency continues to deny the applications in all other parts of the country not within those three circuits. This lawsuit seeks a declaration which would require the government to process those applications nationwide. You can read the complaint in the action titled Moreno v. Nielsenhere and can follow the docket here.

In addition to these cases which directly impact Salvadoran TPS holders, two other lawsuits have been filed which focus solely on the termination of TPS for Haiti.

Organizations supporting the Centro Presente lawsuit also conducted a fact-finding mission to Honduras and El Salvador earlier this year and issued a report detailing current conditions in those countries which would face TPS holders if they are deported. Their conclusion:

The delegation’s observations are consistent with what federal authorities – in both Republican and Democratic administrations – have previously found on numerous occasions: that Honduras and El Salvador are plagued by stagnant economies, food insecurity, extreme gang violence, gender-based violence, and ill-functioning infrastructure that makes these countries unsafe for their nationals to return. In light of these unstable conditions, TPS provides safe haven for Hondurans and Salvadorans in the United States. In an abrupt departure from these findings, however, the Trump Administration terminated TPS status for Hondurans and Salvadorans. As it stands, TPS is set to terminate for Salvadorans on September 9, 2019, and for Hondurans on January 5, 2020. The deportation of TPS recipients is tantamount to a death sentence, and it will destabilize a region that is still reeling from ongoing natural disasters and other crises.

Since Donald Trump came into office in 2017, it has been the US federal court system which has done the most to prevent or slow some of the worst abuses of Trump's anti-immigrant agenda. The courts may be the last best hope for Salvadoran TPS holders to remain in the country which has been their home for 17 years or more.